The Secretary of State for Defence (Mr Ben Wallace)

- Hansard -

Copy Link

- - Excerpts

I beg to move, That the Bill be now read a Second time.

The men and women of our armed forces are some of the most professional and capable people this country has. They risk their lives to keep us safe, uphold our values and support society whenever the call comes. I know the exceptional and often dangerous tasks that we ask them to do, and the war memorials sadly record the price of that sacrifice that they sometimes have to make. Our support for them should not be confined to the occasional act of remembrance, but should be real and should recognise the things that they do in our name.

In 2004, Phil Shiner, a lawyer, went fishing. He fished for stories, he fished for victims and he fished for terrorists. Phil Shiner and his company, Public Interest Lawyers, fished for people from whom he could make money and to accuse British troops of wrongdoing. By the time Phil Shiner and his like had finished, he had dragged before the courts 1,400 judicial reviews and 234 compensation claims against hundreds of troops. Alongside him on some of those occasions was another law firm that will be, I am afraid, all too familiar to some on the Opposition Benches—Leigh Day. From 2008, those types of firms hauled industrial levels of claims before the courts—never mind the fear and worry and the endless investigations triggered into the men and women of our armed forces. What mattered to the ambulance chasers was the money—the legal aid income, the commissions on compensation claims.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

They are in the Library. They were published last week and this is in the impact assessment, but I am very happy to write to the right hon. Member with the clear numbers. I can tell him now that overall, 1,130 compensation claims were brought between 2003 and 2009. One hundred and eighty-eight of the 244 claims put forward by Public Interest Lawyers were struck out by the High Court, and a further 32 lapsed due to inactivity, so we could say that they were found out and justice was eventually done, yet in the meantime, our troops had to endure repeated investigations, interviews and, in some cases, prosecutions.

The system as it stands provides an all-too-easy route for lawyers to spark repeat investigations and multiple claims, too many chances to earn fees and too many chances to drag yet another soldier through a witness box or an interview. If that all fails to produce a result, and most of them do not, there is always the opportunity to use the media to drum up more business, damaging our reputation across the globe with unsubstantiated allegations.

In theory, a veteran who served in Iraq and Afghanistan could have been involved in up to 13 investigations. The list is exhaustive: a coroner’s inquest; a commanding officer’s investigation; a service police investigation; the Iraq Historic Allegations Team, a judicial review, a service inquiry—the list goes on. Remember that in the middle of this are the men and women who risk their lives to ensure that we sleep safely in our beds.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

The hon. Member makes a really important point. Under the Bill, there are steps where prosecutors will have to pay due regard to the impact on soldiers and sailors of that type of further action.

We have been told that this Bill is controversial. Some have gone as far as to say that it decriminalises torture or prevents veterans receiving compensation. Both allegations are untrue. I have to question whether those making such points have actually read the Bill in full. As the former Attorney General for Northern Ireland, John Larkin QC, has recently written:

“It is clearly wrong to say that the Bill would forbid prosecution of serious allegations of torture supported by evidence.”

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

The hon. Member points to the statement made in the House, and the Government still stand by that. We will ensure that legislation comes forward as part of the overall package to address legacy issues in Northern Ireland.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

First, that is what we are doing. I do not agree with the point about torture. I absolutely agree with the point by the former Attorney General for Northern Ireland on that subject.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I am going to make some progress. I know that there are lots of people down to speak in this debate and, although I am willing to give way as much as possible, I would like to make sure that other Members across the House get a chance to speak and make their points.

Let me set out what the Bill does and what it does not do. First, the Bill ensures that, in accordance with article 6 of the European convention on human rights, every member of the armed forces and Crown servant is

“entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Not my words, not the Government’s words, but the actual words in the ECHR itself. Note the phrase “reasonable time”. That condition runs right through this Bill.

Clauses 1 to 7 introduce new conditions on prosecution for certain offences. In particular, clause 1 sets out when the presumption against prosecution measures will apply, including that the measures will apply only to alleged events that took place on overseas operations more than five years ago. Clauses 2 to 5 create new thresholds that a prosecutor is required to consider when bringing a case. That will give service personnel and veterans greater certainty that the unique pressure placed on them during overseas operations will be taken into account when decisions are made on whether to prosecute for alleged historical offences. The first threshold is that, once five years have elapsed from the date of an incident, it is to be exceptional for a prosecutor to determine that a serviceperson or veteran should be prosecuted for alleged offences on operations outside the UK.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

First, I took the decision that, if we look back at many examples of case law or challenges, the debate around torture and murder has often been about the excessive use of an action in doing something that is what a soldier may or may not think is legitimate. For example, it is an act of war to go and attack a target. It is, unfortunately, an act that a soldier may have to do, which is to use lethal force in defence. It is often a side effect or a consequence of an action that you detain people. Often, the legal debate around that has focused on whether the soldier has been excessive in that use of force. If a soldier uses an excessive amount of force in self-defence on duty, that is viewed as murder. That is where we have often seen challenges in courts around both investigations and decisions to charge.

What is not part of war in any way at all is sexual offences. It is not a debatable point. It is not a place where it is possible to turn on a coin and argue that there is a right and a wrong. That is why I took the view that we should exclude sexual offences from schedule 1 but in the main part of the Bill cover all other offences. It is not the case that, even after five years, someone cannot be prosecuted for torture, murder or anything else. It is absolutely clear that it is still possible to prosecute, and it is our intention, should new or compelling evidence be brought forward, to prosecute for those offences. The Bill is not decriminalising torture and it is not decriminalising murder in any way at all. I mentioned earlier the view of the former Attorney General of Northern Ireland, who is himself well practised in that type of law and an expert.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I thank my right hon. Friend.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I fully agree with my right hon. Friend: torture is not an acceptable part of what any soldier or any citizen of this country should take part in. Where former Governments, of all colours, have been found to have not upheld those standards, they have either been prosecuted or faced the consequences. No one is excluding that and no one is decriminalising it.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

First, the Bill deals with two parts of why often people are investigated. One is under civil proceedings, where they are investigated or interviewed, or involved in the inquest. Many of those personnel find themselves repeatedly interviewed, either as a suspect or, indeed, through constant summonses as a witness in an inquest. As we know from a number of cases, that has happened on multiple occasions. That is why the second part of the Bill deals with the civil route and the first part deals with the criminal bit.

On the criminal bit, one change is the requirement after five years for a number of thresholds to be gone through before a decision to prosecute is progressed. We think those thresholds are enough to make sure that investigators, or the prosecutor, before perhaps embarking on a repeat investigation—for example, if there has already been one—have to have regard that this is important new evidence. In my experience, investigators do not just investigate for investigation’s sake; they investigate to reach a point of prosecution. If they feel that a prosecution is unlikely, they will not pursue it. I feel that will therefore reduce the number of investigations.

My right hon. Friend also makes the point, in regard to the critics, that the Bill does not prevent prosecution in certain circumstances of egregious crimes committed either against humanity or our treaty obligations at all. That is really important. We will never prevent new evidence from producing a prosecution if a crime has been committed.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I am now going to progress.

The second element of the first part of the Bill ensures that, when making a decision, the prosecutor must give particular weight to certain matters, such as the adverse impact of operations on our personnel and the public interest in finality where there has been a previous investigation and there is no compelling new evidence. If it is deemed that the case should proceed to trial, the third threshold requires consent before a prosecution can proceed. In England and Wales, for example, that will be from the Attorney General. In those cases, the Attorney General will be acting independently of Government, as guardian of the public interest.

Some groups such as Liberty have suggested that this is political interference. It is nothing of the sort. Given that the Attorney General already has decisions over prosecutions in statute ranging from the Auctions (Bidding Agreements) Act 1927 to the Theatres Act 1968, it is neither uncommon nor controversial.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

If the hon. Gentleman is going to tell us about the Advocate General for Scotland—[Interruption]—or rather, the Lord Advocate in Scotland, who also sits in the Scottish Cabinet—and his role in directing prosecutions, I will be interested to hear.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

We are not going to publish his opinion or anybody else’s.

We do not publish the opinion of our Attorney General. It is a long-held policy of most Governments not to publish the legal advice they receive, except in exceptional circumstances.

Part 2 of the Bill makes changes to the time limits for bringing claims in tort for personal injury or death and claims for Human Rights Act 1998 violations that occur in the context of overseas military operations. Clauses 8 to 10 introduce schedules 2, 3 and 4. Taken together, these provisions introduce new factors that the courts in England, Wales, Scotland and Northern Ireland must consider when deciding whether a claim for personal injury or death can be allowed beyond the normal limit of three years. The provisions also introduce an absolute maximum time limit of six years for such claims. These new factors ensure that operational context is properly taken into account, and they weigh up the likely impact of giving evidence on the mental health of the service personnel or veterans involved.

Clause 11 amends the Human Rights Act. This provision largely mirrors the changes that are being made for tort-based claims. It will change the rules governing the court’s discretion to extend the one-year time limit for bringing claims under the 1998 Act and will introduce an absolute maximum time limit of six years for human rights claims in relation to overseas operations. Again, critics of the Bill are trying to mislead veterans with tales that this somehow discriminates against our armed forces.

Let us put this six-year backstop into perspective. Currently, for claims in tort, where personnel may sue for personal injury in England, there is already a time limit. Mostly, that limit is three years from the date of the incident or knowledge of it. In other words, if a former soldier is diagnosed with PTSD 20 years after his service, the time limit starts then, not when the operation took place. The existence of time limits is commonplace and was upheld by the European Court of Human Rights in the case of Stubbings v. the UK. The UK Human Rights Act itself has a 12-month time limit for claims from the event happening but does allow for further judicial discretion, and the armed forces compensation scheme has a seven-year time limit.

Finally, clause 12 will further amend the Human Rights Act to impose a duty to consider derogating from—that is, suspending our obligations under—the European convention on human rights in relation to significant military overseas operations. This measure does not require derogation to take place, but it does require future Governments to make a conscious decision on whether derogation should be sought in the light of the circumstances at the time. We want in future the ability, if necessary, to allow soldiers to focus on the danger and job in hand when on operations, not on whether they will have a lawsuit slapped on them when they get home.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I certainly recognise that people have concerns. Some of those people were doing the job that I am doing when these things were going on, so I would venture to ask them why they did not do anything about it at the time. It is a fact that there has been abuse of this system; we all know that on both sides of the House. It is a fact that we need to do more, rather than just talk about it, for our veterans. It is really important to include measures to recognise the very unique experiences of and pressures put on the men and women of our armed forces when they go on operations hundreds of miles away.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

My hon. Friend makes a substantive point, and one reason we find ourselves facing these challenges is because there is a clear conflict between international humanitarian law in some areas, and international human rights. The encroachment and growing reach of ECHR into areas of combat has created a clash, in some sense, between things such as the Geneva convention and individual human rights. That is why when the authors wrote the ECHR, they included some of those carve-outs as a way of accommodating the international laws under which they had been operating in the mass conflict of the second world war. Indeed, when the Defence Committee was chaired by my right hon. Friend the Member for New Forest East (Dr Lewis), it picked up on that very real clash, which is hard to resolve. In my view, some of the problems with lawfare is that people are exploiting that clash for financial gain. It is easy to hide behind a humanitarian law on one day and a human rights law on another, and we have a duty to try to make a difference.

We are not going as far as many countries under the jurisdiction of ECHR. Other countries in Europe have a statute of limitations on criminal offences. Germany and France both have a number of criminal statutes that are statutes of limitations. Other countries also do that, or have amnesties, but we are not going that far. We are trying to resolve that clash and see how we can ensure a proper threshold, so that there are no vexatious investigations and our men and women do not constantly find themselves the subject of them.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

The right hon. Gentleman is a learned Gentleman and a former colleague of mine—

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

Well, he should be. Only a solicitor would argue the toss between a barrister and a solicitor; for us mere soldiers, they are learned gentlemen or women in this context. I am afraid that he is absolutely wrong in his assertion. Nowhere in the Bill prevents a prosecution for torture either under five years or over five years. If he can show me where in the Bill there is a decriminalisation or tolerance of torture, I would be delighted to hear which clause or subsection decriminalises torture. Will he show me the statute?

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

Does the right hon. Gentleman therefore venture that beyond torture there is murder? Should we include murder in that schedule as well?

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I will crack on. The House has heard the point from the Liberal Democrat spokesman. I venture that I will side with the former Attorney General for Northern Ireland on his views regarding whether this provision does or does not prevent torture. I think his judge of the law is pretty succinct, although I have not always agreed with his views. [Interruption.] I shall carry on.

In conclusion, the Bill is about doing the right thing by our troops. Our soldiers and values must uphold the highest international standards. The Bill is not an amnesty, a statute of limitation, or the decriminalisation of erroneous acts. We will continue to protect the independence of our prosecutors and our service police, and we will investigate and, if necessary, prosecute service personnel who break the law. But what we will not accept is the vexatious hounding of veterans and our armed forces by ambulance-chasing lawyers motivated not by the search for justice, but by their own crude financial enrichment.

This House should reflect on how lawfare has ranged way out of control. All too often, the victims have been the very people who risked life and limb to keep us safe. The Bill is a measured step, making provision for the unique circumstances our troops find themselves in on operations overseas. I commend the Bill to the House.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

What is appalling is the straw man being put up time and again by a Labour party half-funded by these ambulance-chasing lawyers. That is going to damage our reputation. No apology for the money they took from a number of them—no apology whatever. What we should recognise is that many of—[Interruption.]

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

Much of the mess we are having to come and clean up today is because of your illegal wars, your events in the past and the way you have run the safety of our forces. To put up straw men and make wild allegations that are wholly inaccurate, and disputed by people much more learned than the right hon. Gentleman, does a disservice to our troops and is all about making an excuse for not supporting the Bill. We will see tonight whether or not he supports the Bill.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

This is embarrassing.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Will the hon. Gentleman give way?

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

As ever, the hon. Gentleman makes reasoned points and a good speech. First, he has not mentioned it yet, but he will be aware that there was something called the Lyons review, which was the service justice review that has reviewed and continues to review. We are in the middle of implementing some of its recommendations on improving on exactly the points he makes about service justice.

Secondly, before the hon. Gentleman finishes his speech, I ask him within what parameters we should work when trying to come to a consensus with the Scottish National party. For example, does he except that in cases of civil law there is a need for tort limitations? Does he accept the statute of limitations on civil pursuit—that many of those cases should have a time limit? Does he also accept the line in the relevant article of the European convention on human rights that says people are entitled to

“a fair and public hearing within a reasonable time”?

If he accepts both those parameters, perhaps we can talk.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I have a lot of time for the hon. Gentleman and recognise his allegations of how I have ridiculed some of the approaches. The reality is that we on the Government Benches have to deal in what is actually in the Bill and the reality of operations. We have a duty to these people. We have engaged both the hon. Gentleman and the shadow Secretary of State in trying to improve the Bill, and not once have you come forward with something with which I can improve the Bill. The Bill is moderate, fair and down the middle. If you are on the wrong side in the Lobbies tonight, you are clearly on the wrong side of history.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

I listen with interest to what my hon. Friend says and to his example of unique circumstances. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that this Bill makes some people less or more equal before the law—that it was an unfair application—but it does not prevent anyone from being prosecuted for a crime that they have committed, nor does it introduce special defences for people, so that some of these offences allow them to have an excuse. All it does is ask a prosecutor to have exceptional regard for the circumstances that those concerned may find themselves in and also, where an investigation has already happened, to think about the level of new evidence that should be applicable.

Mr Wallace

- Hansard -

Copy Link

- - Excerpts

Will the right hon. Member give way?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

We are very clear that we will not leave Northern Ireland veterans behind. The commitment of equal treatment in any Northern Ireland Bill that comes forward will be absolutely adhered to. This Government will not resile from their commitments to those individuals. We recognise, value and cherish the service and sacrifice of everyone who served in those operations.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

It is a pleasure to finally be able to speak in the debate. I have not heard such a lot of vacuous nonsense for a long time from the Opposition. They talk about protecting our troops while invoking a litany of things that I am afraid are not true. I started writing them down, but I got bored after about two hours: “almost impossible to prosecute”; “independent investigations”; “breaks the armed forces covenant”; “time limit on prosecutions”. None of that is in the Bill. I have written down those phrases word for word, and it is disgraceful that Opposition Members try to build on the back of our armed forces personnel a caricature of the Bill that is totally false.

We have heard some good speeches today and there were some challenges for me to take away as the Bill Minister. I will address some of those now. The Bill delivers a promise made to brave individuals that we will deal with the threat of prosecution for alleged historical offences many years after the event and help put an end to the vexatious civil claims that undermine our armed forces. It delivers that promise in a proportionate way by ensuring victims’ rights and access to justice on the one hand and fair treatment of those who defend our country on the other.

I will deal with a couple of detailed points. The question of Northern Ireland veterans was quite rightly raised on a number of occasions. We are clear that we will deliver our commitments to Northern Ireland. In a written ministerial statement on 18 March, we committed to equal treatment for those who served on Op Banner. We will not resile from that position.

Regarding any perceived disadvantages to service personnel and veterans, as I have said before I do not anticipate the measure having a significant negative impact. Let me address the point about the armed forces covenant. It was designed to ensure that there is no disadvantage for people who serve in the military. It was never designed to compare somebody who works in Tesco with somebody who is asked to go away, serve on operations and sacrifice their life. The Bill applies to both civilians and military personnel who are deployed on operations. I totally refute that it is any way a breach of the armed forces covenant—something I worked hard to produce and will be the first Minister to legislate for, next year in the armed forces Bill.

I have noted the concerns many hon. Members raised about part 1 of the Bill and the fact that it does not address the problem of reinvestigations. We could not run a Department if we did not take seriously every allegation that came in and investigated every single one. The problem comes when that is advanced further and starts impacting on veterans’ lives and way of life. That is why we have introduced a very low bar for prosecutors to get over. To say, as my friend the hon. Member for Barnsley Central (Dan Jarvis)—he knows he is a great friend of mine and I have a huge amount of time for him—said, that it is almost impossible to prosecute, is simply incorrect. It is a low bar. It asks for consideration of the circumstances under which the House asks servicemen and women to operate. It is asking for consideration of whether it is really in the public interest to prosecute repeat allegations with no new evidence, and it is asking for Attorney General’s consent.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

No I will not give way.

Any allegation that has a very low quality of evidence will clearly be investigated. There is no time bar on murder. There is no time bar on any of the offences in the Bill. That is a low bar that we are asking prosecutors to get over. Unnecessary? Seriously? Say that to Lance-Corporal Brian Wood, who I was with yesterday. When his kid comes home from school, he goes upstairs and cries in his room. Why? He says, “Daddy, at school they’re all saying that you’re a murderer.” Every single one of those allegations was found to be completely false and generated simply to build the financial position of solicitors.

The shadow Defence Secretary made some comments about the Secretary of State. Let us get this absolutely clear and into the open. Many colleagues here have been very quick to declare interests seeking associations with the armed forces, but not with the lawyers who pursued them. The shadow Secretary of State failed to declare his interests when referencing the much criticised law firm Thompsons Solicitors, from which he received £2,000 for his direct mail campaign literature in 2017. In fact, since 2001 Labour and its MPs have received £229,000, including £80,000 from solicitors Leigh Day. It is all on the record, including tens of thousands of pounds to the shadow Attorney General, the right hon. Member for Islington South and Finsbury (Emily Thornberry).

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not take interventions. Members have had hours and hours to whine away on these points.

The reality is that over a consistent period of time, the Labour party—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

It is not a point of order. It is yet another effort to waste time in a very important debate. [Interruption.] I hear the complaints about my attitude towards Opposition Members. Let me be absolutely clear. I have said in private a number of times that I will engage with the individuals who are so loud this afternoon. Not once have they chosen to do so, and not once have they come up with a proposal.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Absolutely not; I am not giving way.

It is very clear to me that this is the first Government to come to this House and not to say, “What a difficult problem this is, but we will hand all our soldiers off to the human rights lawyers.” This is the first Government who are actually going to do something to protect our servicemen and women. I am proud of that and I make no apology for it at all. [Interruption.] There really is no point in whingeing on at me because I am not going to give way.

I came to this place because I loathed the way it treated cheaply my generation of servicemen and women as we fought for the freedoms and privileges that Members of this House enjoy every day. Summer after summer, I served with what was and is this nation’s finest product—our fighting men and women—in some of the most testing circumstances that this House has deployed for generations. Yet when they came home, this House was not there for them. In those heady days, Members will remember the pain of our veterans’ families as they fought for decent prosthetics or effective mental health care. We are light years away from where we were—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

“Absolute rubbish”, the Labour party says—amazing.

I still cannot describe what it was like sitting with the family of a young man who could not cope with the trauma that he suffered as a result of what we asked him to do on our behalf and who took his life. I cannot describe what it is like to visit the parents of a soldier who died in your arms 48 hours earlier, thousands of miles from home, and tell them that it is pointless. This Bill is different. It is fair, it is proportionate and it is balanced. It is good legislation. Members can match words with actions and vote for this Bill tonight.

Question put, That the Bill be now read a Second time.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

I am happy to pass on it; it has been answered by Dr Ekins.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

Q On the Bill’s breaching the armed forces covenant, I do not think there is any dispute that, if you bring in any time limit on anything, people will fall either side of that line. However, disadvantage in the armed forces covenant is very clearly about comparing those in a similar situation—those in service and civilians—which is why the Bill applies to both groups.

You argue that someone serving in the armed forces will have that limitation and will therefore be disadvantaged, breaking the armed forces covenant. Service personnel will of course be able to serve in operations, where they may get killed or lose limbs, and some would argue that that is a disadvantage. The Government would argue that that is a misapplication of the armed forces covenant, and that, actually, if you compare a service person with a civilian in the same situation, there is no breach of the armed forces covenant. What would you say to that?

Charles Byrne: You have always been very clear about welcoming our challenge as a constructive effort, so we have had this conversation before, Minister. Thank you for the chance today.

For me, it is fairly simple. In the armed forces covenant, the principle of no disadvantage is not caveated to say, “It must be no disadvantage in directly comparable situations.” It is a principle of no disadvantage much more generally than that. This Bill would effectively prevent a member of the armed forces from being able to bring a case against their employer, which would be different from a civilian—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Of course, I understand that. But by extension of that, armed forces service—because you may well suffer the disadvantage of being killed—is, in fact, a breach of the armed forces covenant.

Charles Byrne: Not in quite the same way. I was looking at it much more generally—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

You do not think it is a disadvantage?

Charles Byrne: I think this Bill would be a breach of the armed forces covenant. If you look at the general principle, when we say that we do not want someone to be disadvantaged by their service, and think of a really straightforward example—one that you will well know—about people who move house regularly because of deployment, they therefore go to the back of the queue for dentistry or primary schools. That is where you are comparing somebody who works nearby—in a shop or a hospital—in a direct comparison, where we do not want the disadvantage. I think it does apply in very general terms.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Okay, so the disadvantage of serving is, in your view, not applicable in the case of being killed, but in this case where we are trying to protect our people, it is applicable. Do you see that there is a disparity there that is not really fair? It seems to be translating it to your own intent.

Charles Byrne: No. The intent behind the armed forces covenant was that there should be no disadvantage, and it looks—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

But is being killed a disadvantage?

Charles Byrne: Is that an inherent risk of—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Of military service—I think most people would argue that it is.

Charles Byrne: Exactly.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q So is lawfare an inherent risk of service?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Sorry.

Charles Byrne: What happens if this Bill goes through is that it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel. Is not that the intent behind the armed forces covenant—not to protect the MOD, but to protect armed forces personnel?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

On overseas operations.

Charles Byrne: On overseas operations.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Yes, and as we have heard, the vast majority of those claims—94% of them—are from people abroad—

Charles Byrne: Even that number is questionable, though, is it not?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

It is not questionable—it is the data.

Charles Byrne: No, it is based upon a sample. Of the 70 cases that fell outside of the six months, only 39 were investigated—not all of them. Of those 39, 17 were found to have—so those were 17 actual cases. There could be another 31 from that sample size, which is taken only from Afghanistan and Iraq, as you know. There is a whole area of exclusions within that. So that number is a little bit—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Well, the numbers are the numbers. We cannot argue with them.

Charles Byrne: They are, but they are questionable numbers, potentially.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Okay, but the idea that you can apply the armed forces covenant when it fits, and then not when it does not fit, I think is a misapplication of the armed forces covenant.

Charles Byrne: Is that not exactly what this Bill is potentially doing? It is choosing to apply it in some cases, and not in others.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

No, because what we are looking to do is to protect, and to ensure that our servicemen are not disadvantaged.

Charles Byrne: I think it is protecting the MOD, rather than the service personnel—that is the debate that we have had.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

Q Chris, good afternoon. Thank you for coming along. Your regiment has been through this process a number of times. Can you outline why the legislation we are considering today is necessary? The PWRR has had a pretty on-the-coalface experience of repeat investigations over many years. I have two questions for you. Can you outline the effect of legislation such as that which we are considering today, and what it will mean to those who have served on operations?

Lieutenant Colonel Parker: The effect of the legislation on people would be to remove quite a large amount of pain and misery, which I have experienced not only with individuals but with their families. We must remember that when people’s lives go on hold for several years due to investigations, whether they are right or wrong, that can have a very damaging effect on families and individuals. This legislation certainly will remove most of that pain and misery, which I have witnessed, as many have.

From our regiment’s point of view, few things have been harder for our men—our infantry are primarily male—who are often from the most vulnerable places in our society and often very tough backgrounds, who do their bit and then find that they are exposed. This legislation is broadly going to remove that risk and pain—in broad terms. I know you might want to talk about the smaller aspects.

In terms of the effects on operations, I can only speak from a subjective point of view about the impact on me, but also on all the people I speak to. There is an increasing concern among very young junior commanders—I have been one of them on operations, where you have to make decisions. Going forwards, without this sort of legislation, there is the increased risk to life of people not being able to take decisions, as I had to, such as: do you bring in a precision airstrike or not and take 10 lives with some risk of collateral damage on the spot, to save lives, without some form of legal concern, because you are doing the right thing and you are following drills?

I think your Bill’s effect on operations will be to remove a large amount of that concern. I think that is probably the bigger professional concern—that it would cost more British lives because people would be hesitant.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q I think that there is a temptation in this place to let the perfect be the enemy of the good in a lot of the legislation that we pass. Of course, legislation is not going to be all things to all men, but within the art of what is possible—I have asked everybody this question—what would you do to improve the Bill? There are things that people want to do. For example, they want to separate classes of claimants, so that the six-year limitation on human rights claims is unlimited for armed forces personnel but limited for those we go against. That is not legal under European human rights law. We heard that from the British Legion this morning. There are plenty of ideas coming forward that are not possible. What, within the art of what is possible, would you do to improve the Bill?

Lieutenant Colonel Parker: That is a difficult question, because of the stretch of my understanding of what is and is not legally possible. If I may add value in this way, I think there is a concern about the six-year time limit. There is a perception—maybe it is my misunderstanding —that the six-year time limit would apply to service personnel themselves bringing claims against the armed forces, or against people. Is that correct?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q That is correct. What I was saying is that we cannot differentiate between different classes of claimants. That is illegal under European human rights law. If you are going to draw a line to stop people bringing European human rights cases against this country, it has to apply to anyone. The calculation that is then made is where to draw the line. Given that 94% of those claims came before that, and that the six years will give a better level of evidence and people will be helped going through the process—the whole thing in the round—that is why the six years were taken. But what would you do to improve that?

Lieutenant Colonel Parker: I think there has to be some form of recognition and qualification that the major concern—I see it as a volunteer—is that we are getting close to 100 cases, in a body of about 5,000 people, of severe mental distress, and those are rising by the week, primarily out of Afghanistan. On the timeline of those cases appearing—we are in the category of post-traumatic stress disorder in about 90% of cases—we are talking about 10 years.

Bear in mind that there are proven facts that the bell curve of PTSD cases is 28 years. My own personal experiences was 24 years after the event, out of the blue, and then being treated for it. If cases were to be brought—and I think it is quite reasonable to allow soldiers, sailors and airmen to bring cases for mental duress that could have been caused by a mistake, an error or incorrect equipment, or some form of claim—to put a six-year time limit does not help. It may help legal reasons for other purposes, but it certainly does not help the mental duress, because the facts and evidence point to a 28-year bell curve, with 14 years therefore being the mean.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Of course, and that that is why we have built in there that it is the point of knowledge, rather than when the incident took place. Therefore, if you had PTSD 24 years later, your six-year clock would start from that 24-year point.

Lieutenant Colonel Parker: Understood. It is great to hear that clarification.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Yes, it would. You have no idea what you are talking about.

Lieutenant Colonel Parker: You can understand the problem that the military community have. It is hard enough for someone like me, as a master’s graduate, to understand it, but also trying to get this understood by a large body of quite unqualified people who fought bravely is difficult enough.

The only other qualification that I would add is to do not with the question that you have directly asked but with a broader question, which you may want to touch on later. It is very difficult to separate, in the view of the veteran, operations from one theatre and operations from another theatre. Obviously, you probably know straight away that I am referring to Northern Ireland. I understand, and we understand, that it is not part of this Bill, but I think there has to be a measure by the Government to say—and I think they have—that other measures will be taken ahead to deal with that. That is something that I know is a concern, and it is something that is of prime concern.

Broadly—I have to say this broadly because, again, we have to remember that we do not get people scrutinising the Bill itself; they hear the broad terms of it—it is welcomed by the community and there is no major feedback of negativity other than the points we have registered about claims, which you have clarified very helpfully.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Hi, Judge Blackett. Thank you for coming in today. We have had broad discussions along this issue already, so I will not reheat any of those. What would you do within the art of what is possible? There are plenty of ideas—taking out the six-year limit, applying it to one set of claimants and so on—but within the art of the possible and the strategic aim of the Bill, what would you do to improve it?

Judge Blackett: That has gone to the end of where I was going to speak, because I was going to start off by saying that I think the Bill does not do what it is trying to do. My concern relates to investigations, not prosecutions; but there are a number of issues, and I think you and I have discussed some of them.

The first thing I would do is apply section 127 of the Magistrates’ Courts Act 1980 to the military. That puts a six-month time limit on summary matters, and I would extend that to be matters that were de minimis—there would have to be a test of de minimis. Interestingly enough, halfway through my time as the Judge Advocate General, I issued a practice memorandum, which effectively incorporated that into the court martial. Following Danny Boy, the only offences that could be brought to trial were common assaults, and they were not, because the Army Prosecuting Authority followed my practice memorandum. The Ministry of Defence at the time were not in favour of that, and they challenged. Unfortunately I had to withdraw that practice memorandum.

That would deal with minor cases, and there are lots of minor cases. The sorts of things that IHAT was dealing with were that there would be a complaint that appeared to fall at the upper end of the spectrum. There would be an investigation. It would find that the allegations had been wildly exaggerated and end up finding that the most serious offence might have been an attempted actual bodily harm. In cases like that there should be a limitation period. So that is my first thing.

The second thing is that I would have judicial oversight of investigations. I introduced something called “Better Case Management in the Court Martial”, towards the end of my time as the Judge Advocate General. That puts time limits on investigations. The most important thing about it is that a case, early on, goes before a judge, and a judge then sets out a timetable of what various things should do. If section 127 of the MCA was brought into force, and the case dealt with de minimis, he could then say, “This is de minimis; stop the investigation.” So you need some mechanism, and judicial oversight. In my opinion, you could do that.

Thirdly, I would look at legal aid and funding. We have to remember that Northmoor and IHAT were set up by the British Government, and were funded by the British Government. The ambulance-chasing solicitors—people like Phil Shiner—used public money to pursue the means. I think you need to look at how legal aid is approved in those matters, and whether complainants should be funded, and the bar for funding them and their solicitors should be set higher.

So those are three areas. Finally, I would raise the bar for reinvestigation, or investigation. Having said that, there were only two courts martial where people were acquitted where there was a reinvestigation, but I would raise the bar for reinvestigation as well. So those are four practical matters that I think the Bill should concentrate on, rather than prosecution.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q One of the difficulties I think people like me face is that we have had General Parker, x-Armed Forces Ministers and others, saying that this and that should happen; why, over the last 10 or 15 years have none of these things been done?

Judge Blackett: You would have to ask them. I am an independent judge, who was the judicial head of the service justice system.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Q Why do you think the MOD has not taken on your advice?

Judge Blackett: I think in terms of the six-month time limit, there were lawyers in the MOD who said that we did not put that in the Armed Forces Act 2006. There are commanding officers who do not want to be limited, because sometimes they need more time. In terms of better case management, I think that the MOD thinks that is a good idea, but I did not come to it until quite late in my time.

I will say one thing, though. In terms of IHAT and Northmoor, as the Judge Advocate General I wanted to be more involved, but I was kept out—properly, I suppose, because I might have to try the cases in the end. We expected a lot of cases to come out of those two matters, and as you know, not a single case came out of them, which tells its own story.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

It is a pleasure to serve under your chairmanship, Mr Stringer.

The principle is that part 1 should cover personnel in circumstances in which they may

“come under attack or face the threat of attack or violent resistance”

in the course of an overseas operation, as detailed in clause 1(6). When developing our policy, we considered whether we should extend the coverage of part 1 to include UK-based drone operators when the systems that they are operating are involved in operations outside the British islands. However, we determined that although the UK-based drone pilots would be considered part of an overseas operation, they could not be said to be at risk of personal attack or violence, or face the threat of attack or violence, as would be the case for an individual deployed in the theatre of operations. We therefore determined that as the personal threat circumstances would not arise in a UK-based role, the personnel in those roles would not warrant the additional protection provided by the measures in part 1. I therefore ask that the amendment be withdrawn.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Some really important points have been made, particularly about mental health provision and the protection of those who operate these systems, but the Bill is clearly there to provide the additional protections that particularly apply to those who face the threat of violence and attack at the time, so I disagree on this point. I therefore ask that the amendment be withdrawn.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

The clauses that deal with special consideration for the circumstances of what is going on at the time are there precisely to take account of the unique physical and mental demands of being in close combat; that is what they are designed for. To suggest that drone operators operating from UK shores would face the same pressures is not the same thing. I therefore ask that the amendment be withdrawn.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Amendments 25 to 28 seek to change the time at which the presumption comes into effect from five to 10 years. The proposal in the public consultation that we ran last year was for a 10-year timeframe for the statutory presumption. It was not fixed policy, because we were seeking the public’s views.

In the consultation, we asked the following questions: whether 10 years was appropriate as a qualifying time, and whether the measure should apply regardless of how long ago the relevant events occurred. As we set out in our published response to the consultation, there was support for a 10-year timeframe, but equally there was support for presumption to apply without a timeframe at all. We also considered the written responses, which clearly indicated the concerns that a 10-year timeframe was too long—memories can fade, evidence tends to deteriorate and the context of events changes. There were also concerns that 10 years was too long to have the threat of prosecution hanging over a serviceperson’s head.

Respondents suggested time periods of less than 10 years, with the most popular timeframe being five years. As the issue that we seek to address relates to historical alleged offences, we did not feel able to apply the presumption without a timeframe. However, given the strength of the views expressed, we felt that a timeframe of less than 10 years would be more appropriate, and five years was the most popular alternative.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I am more than happy to write to the right hon. Gentleman with the exact responses. They are in the House of Commons Library, in the impact assessment. The numbers were clear, and I have just outlined the general findings—[Interruption.] I will not give way again. Some people want 10 years and some five years—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Thank you, Mr Stringer.

New clause 8 seeks to limit to six months the period between an offence being committed or discovered and any proceedings being brought, where a number of conditions can be satisfied. First, the offence must be a relevant offence, committed on overseas operations by a serviceperson. Importantly, the bar to proceedings only applies if the offence being prosecuted is subject to summary conviction only, or is one where no serious, permanent or lasting psychological or physical injury has been caused.

During an investigation, it is not always clear what the charge will be, but this is made harder for investigations on overseas operations where the injured person is a local national. It will not always be possible to get information regarding the incident, or on the permanence or lasting nature of an injury, in the timeframe demanded by the amendment.

Investigations on overseas operations inevitably rely to some degree on actions by others in theatre. Delays in such investigations are a fact of the operational environment and placing a time limit on investigations runs the risk that others may be able to affect the outcome of a service police investigation. The service police cannot have any barriers placed in the way that fetter their investigative decision making. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment. A minor offence is not necessarily a simple matter that could be dealt with quickly by a commanding officer. Placing a barrier in the way of investigations for minor offences does not take account of the disproportionate effect of poor discipline directed towards local nationals in an operational setting.

The amendment is modelled on the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980. That is where the problem lies. That Act codifies the procedures applicable in the magistrates courts of England and Wales. It is not legislation written to accommodate the extraordinary demands made of a system operating in an operational context.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not give way.

Delays are inevitable and applying civilian standards to an operational context is inappropriate. If this is something that might be considered for the service justice system, it would seem more appropriate for an armed forces Bill, but with an exemption to account—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

If this measure is something that might be considered for the service justice system, it would be more appropriate for an armed forces Bill, but with an exemption to account for the complexity of overseas operations. This Bill is not the correct legislative vehicle for the measure. I therefore ask that the amendment be withdrawn.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Mr Stringer, do you want me to speak only to amendment 14?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

The other associated amendments as well?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I thought so.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

One of the main purposes of introducing the presumption against prosecution is to provide greater certainty for veterans in relation to the threat of repeat investigations and the possible prosecution for events that happened many years ago. Amendment 14 would undermine that objective by extending the starting point for the presumption and, in some cases, creating even more uncertainty. However, I want to reassure Members that the presumption measure is not an attempt to cover up past events as it does not prevent an investigation to credible allegations of wrongdoing in the past, and neither does it prevent the independent prosecutor from determining that a case should go forward to prosecution.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I do not accept that. The wording about the “alleged conduct” is clear. We have dealt with a number of allegations: 3,500 from the Iraq Historical Allegations Team alone, and another 1,000 from Afghanistan. They are alleged offences and it is right to leave those in there. I request that the amendment be withdrawn.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Not at this stage, Mr Stringer.

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

Let’s not be personal, Kevan.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I am delighted to answer some of the questions that have been laid out. I have spoken at length about the “five to 10 years” issue in dealing with previous amendments, but I will look to answer some of the questions raised and then speak to clause 1 in general.

We ask a huge amount of our service police. Investigations on overseas operations are inherently dangerous, and the risk of gathering evidence on operations must always be balanced with the risk to the lives of our investigators. To suggest that the service police pursue unmeritorious or vexatious investigations in those circumstances is to do a huge injustice to those brave men and women who do this dangerous work, and we do not.

To understand new clause 6, it is necessary to go through it line by line. Proposed new subsection (1) seeks to apply the clause to,

“any investigation by a police force into alleged conduct as described in subsection 3 of section 1.”

Clause 1(3) applies—

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Clause 1(3) applies where,

“the alleged conduct took place (outside the British Islands)”,

at a time when the person was “subject to service law” under the Armed Forces Act 2006, and “deployed on overseas operations.” There is no further limit on the remaining provisions of the proposed new clause, which means they must therefore apply to all investigations on overseas operations committed by service personnel. For context, there were in the region of 3,000 service police investigations in Iraq and 1,000 in Afghanistan. The majority of those will have been committed by persons subject to service law. It is not considered feasible for such numbers of investigations to be brought in front of a judge, and to do so would undoubtedly add further delays to the process.

Proposed new subsection (2) states:

“The police force investigating the conduct must place their preliminary findings before an allocated judge advocate as soon as possible, but no later than 6 months after the alleged offence was brought to their attention.”

The service police are independent. That independence is enshrined in law in section 115A of the Armed Forces Act 2006. It is common practice for them to consult prosecutors in the course of an investigation and for that discourse to shape an investigation, but this is discourse, not direction. Any obligation on the service police to police their investigation before a person who has control over the final determination of that matter seriously compromises the independence and is therefore contrary to section 115A.

New clause 6 states that the allocated judge advocate may order an investigation to cease should it be determined,

“that no serious, permanent or lasting psychological or physical injury has been caused”—

presumably by the alleged conduct. Again, it would be hard to determine whether that was the case without investigation, a matter complicated by being on overseas operations. Proposed new subsection (3)(b) gives the judge advocate the power to order that an investigation should cease if it is determined,

“that the evidence is of a tenuous character because of weakness or vagueness or because of inconsistencies with other evidence, and that it is not in the interests of justice to continue an investigation”.

That proposed new paragraph is equally problematic; only in the most clear-cut cases can the police produce evidence entirely without some area of weakness or vagueness. Difficult operational investigations are particularly prone to those problems, but the relationship with the prosecutor will allow them to be explored and the progression of the investigation adapted accordingly. Furthermore, inconsistency with other evidence is a factor in all investigations and is what the trial process is created to explore. For a judge advocate to be placed into such a process, rather than relying on the relationship between police and prosecutor, risks adding delay to the investigation, and for a judge to order the cessation of an investigation risks cutting it short where evidence has not yet been gathered due to the complex nature of operational inquiries.

Finally, proposed new subsection (3)(c) seeks to give the judge advocate the power to direct the timetable and extent of further investigation if it is determined that there is merit in the complaint. However, the clause does not specify whether the judge advocate would have continued oversight, or some ability to enforce the timetable and direction. Again, that would place an additional burden on police who, in an operational theatre, responding to operational events, would now have an added layer of bureaucracy placed on them by someone who is not deployed and cannot possibly understand the unique pressures experienced by the deployed police officer. That would remove the discretion that all police officers must have to carry out prompt, independent and effective investigations, and hamper their decision making. That is not the same as the police relationship with the prosecutor, and here I return to my point about discourse versus direction. Discourse allows the police to retain the discretion so vital to acting in response to events; direction fetters their decision making.

The proposed clause is based on the false premise that police carry out unmeritorious or vexatious investigations. It would undermine the relationship between the police and prosecutors and fetter the police in the conduct of investigations in difficult circumstances. It would place an additional and unnecessary cog in a system that does not need it.

New clause 7 fails to take account of the processes involved in investigations. It fails to make clear the difference between an investigation and a reinvestigation and it fails to understand the processes involved in gathering evidence. The proposed clause applies where a person has been acquitted of an offence relating to conduct on overseas operations. It is assumed that this envisages a situation in which a person is acquitted at court martial, but it should be noted that it could also apply to a matter that is heard at a summary hearing in front of a commanding officer, following on from an investigation that did not involve the police. It also applies where a determination has been made by a judge advocate that an investigation into an offence should cease, which, as I have already stated, risks prematurely cutting short an investigation whose progress is impacted by its being an operational investigation.

The new clause proposes that there be no further investigation into the alleged conduct unless compelling new evidence becomes available and an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong that there is a real possibility that it would support a conviction. I will take this step by step.

An investigation is a hard thing to define in law. It starts when inquiries begin, and its purpose is to determine whether what little information there is to start with is credible, and to gather more evidence in support of that. The process of finding out whether evidence is compelling is called an “investigation”. It is hard to see how, people having been told to cease an investigation, no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether the new evidence is compelling is by carrying out the investigation that they are not allowed to carry out. This becomes a circular issue.

Additionally, no further investigation into the alleged conduct may be carried out unless the allocated judge advocate determines that the totality of the evidence against an accused, which presumably has had to come from some sort of investigation that the police are not allowed to conduct, is sufficiently strong that there is a real possibility that it would support a conviction.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Not at this stage.

Where a person has been acquitted and new evidence comes to light, it would be necessary for there to be a further investigation before a prosecutor could determine whether a new prosecution could and should be brought. That is not a decision for the police; it is a decision for the prosecutor. To prevent the investigation would prevent a prosecutor from having the information that they need to make that determination.

Unfortunately, new clause 7 is not clear enough to allow a real debate on what it is seeking to achieve. The only way the police can determine whether new information is “compelling” or “sufficiently strong” to “support a conviction” is to carry out an investigation. A thorough investigation is important. As I said earlier, it can serve to exculpate, which is a good thing for the reputation of our armed forces, as well as to incriminate. The Bill should not, and does not, seek to fetter the police from carrying out investigations. It seeks to ensure that prosecutors are in a position to make prosecutorial decisions based on information that can be gleaned only through thorough investigations.

With the discourse between prosecutor and investigator, a balance must be struck between further investigation and the realistic prospect of conviction, and this includes the measures in the Bill that the prosecutor must take account of.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Not at this stage.

However, this does not need further clauses that seek to fetter that discourse. It needs the lightest touch, which is achieved through the balanced and established relationship between police and prosecutor.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I am happy to address the point about reinvestigation, because there are no circumstances in which anybody could arrive at the Ministry of Defence with an allegation of criminality or whatever it might be and we could not investigate it. There is a difference between investigations and where those investigations start impacting the lives of veterans, which is what the Bill seeks to deal with and which is why we have drawn the line where we have. We are not saying that new evidence comes only from investigation, but, as I have outlined, new clause 7 introduces an element of oversight that is simply not practicable to what we are trying to do. I have outlined that the 3,500 cases in Iraq and 1,000 in Afghanistan, and it is not practicable to do that and to ensure there is a speedy resolution, that evidence is preserved, that if people have done wrong we can prosecute them in a timely manner and so on. I am happy to have a further conversation with the hon. Lady about that later.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I thank the hon. Gentleman for that pertinent question. Extensive efforts have gone down over the years to make sure our people understand the rules within which they should operate. There clearly have been challenges in some of the training regarding detentions and so on, as has been found out through various court cases. I have always talked, on Second Reading and even before the legislation came to the House, about how the it is one of a series of measures. One such measure is about investigatory standards, another is about education and how individuals’ lives are affected, because it is not in anybody’s interests for us to do the legislation and for people not to understand. I am more than happy to share with the hon. Gentleman how much work we have done in that space.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not. Repeat investigations of alleged historical offences or the emergence of new allegations of criminal offences relating to operations many years ago can make the delivery of timely justice extremely difficult. It can also leave our service personnel with the stress and mental strain of the threat of potential prosecution hanging over them for far too long. The measures in part 1 of the Bill are key to providing reassurance to our service personnel and veterans about the threat of repeated criminal investigations and potential prosecution for alleged offences occurring many years ago on overseas operations. The purpose and effect of clause 1 is to set the conditions for when the measures in clause 2 and 3 must be applied by a prosecutor in deciding whether to prosecute a criminal case or to continue with the proceedings in a case. It should be noted with reference to clause 1(2) that the measures do not affect the prosecutor’s decision as to whether there is sufficient evidence to justify prosecution. The first stage of the prosecutorial test will therefore remain unchanged. Clause 1 therefore details to whom and in what circumstances the measures will apply.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I assume that the hon. Gentleman is talking about Judge Blackett, who is the Judge Advocate General. He made some keen points. I have met Judge Blackett and we have tried to incorporate his work in the Bill, where appropriate. The idea that new evidence is presented and we do not prosecute is simply not the case. With reference to the six individuals killed at Majar al-Kabir in 2003, if new evidence is presented in that case, we would expect the Iraqis to prosecute. If new evidence emerges in cases against servicemen and women, they can still be prosecuted beyond these timelines. The legislation is simply bringing integrity and rigour to the process.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

No, I am going to make some progress.

Under the Bill, the first condition establishes that the measures will only apply to members of the armed forces, both regulars and reserves, and to members of British overseas territory forces operating as part of UK forces when deployed on operations outside the British Islands, as defined in clause 7. Although we do deploy other Crown servants and contractors on overseas operations, those individuals are not deployed on front-line military operations and are not ordinarily exposed to the same risks and dangers as service personnel. It is not therefore appropriate to extend the protection provided by the measures in part 1 for our service personnel and veterans to other Crown servants or contractors.

The first condition in the legislation also requires that the alleged conduct occurred while the person was deployed on an overseas operation during which personnel came under attack or faced the threat of attack or violent resistance. Operations conducted outside the UK are vastly different from those conducted inside the UK. Within the UK, the military only ever operate in support of the civil authorities. With the exception of Operation Banner, which was an absolutely unique circumstance, UK operations rarely, if ever, require our personnel to operate in the same sort of hostile, high-threat environments they face on overseas operations. Excluding Northern Ireland, there are no outstanding historical allegations relating to operations in the UK.

Be assured that we have not forgotten our Northern Ireland veterans. The Secretary of State for Northern Ireland will be bringing forward separate legislation to address the legacy of the past in a manner that focuses on reconciliation, delivers for victims and ends the cycle of re-investigations into the troubles in Northern Ireland, which has failed victims and veterans alike. That will deliver on our commitment to Northern Ireland veterans.

The second condition for the measures to apply is that the alleged offence must have occurred over five years ago, with the start date being the date of the offence. Where an alleged offence occurred over a period of days, the start date will be the last day of that period. It is vital that investigations into historical allegations are brought to resolution without undue delay. To provide greater assurance to our brave servicemen and women, we consider five years to be the most appropriate start point for the presumption.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

He’s a fan, isn’t he?

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will answer the point about the Judge Advocate General first. He is able to comment on all areas of policy that have a direct impact on his role within the service justice system and the management of the military court system, but the measures in part 1 of the Bill impact on the prosecutorial process. As such, we felt it was more important to focus on engagement with the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority, which were all engaged in the process.

As I have said already, I have met the JAG and have looked at his recommendations, and we continue to look at how we can take forward his suggestions in order to improve the process of service justice. More will come on that in due course.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I would absolutely love to.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

We have already published a response to our consultation, which was widely available for everybody to see. We have also published a response that contains a lot of the conversations around this. As I have indicated, we have engaged with a number of different parties and have arrived at the decision that this was a fair and proportionate line to tread in order to achieve the effects that we are trying to achieve.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I am going to speak to new clause 1, and then I will happily give way.

Our intention with the measures that we have introduced in part 1 of the Bill was to ensure that we could provide the utmost reassurance to our service personnel and veterans in relation to the threat of repeated scrutiny and potential prosecution for alleged offences occurring many years ago on overseas operations. This has meant seeking to have a balance in introducing protective measures that would set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations would be given particular weight in favour of the service person or veteran, but which would not act as an amnesty or statute of limitations, would not fetter the prosecutor’s discretion in making a decision to prosecute, and would be compliant with international law. We have achieved that balance in the combination of clauses 2 and 3. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that, in exceptional circumstances, individuals can still be prosecuted for alleged offences.

New clause 1 would effectively replace the presumption against prosecution with a requirement in clause 1 that the prosecutor should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial when coming to a decision on whether to prosecute. This not only removes the high threshold of the presumption, but seeks to replace it with a consideration—whether the passage of time would prejudice the chance of a fair trial—which is likely to already be considered by the prosecutor when applying the existing public interest test. We have never suggested that service personnel or veterans have been subject to unfair trials. We have sought instead to highlight not only the difficulties, but the adverse impacts on our personnel, of pursuing allegations of historical criminal offences. Justice delayed is often justice denied, for defendants and for victims. I believe that clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice, and the requirement to provide a fair and deserved level of protection for our service personnel and veterans. Removing the presumption in the way the new clause proposes would simply remove that balance.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I did not meet Judge Blackett before the legislation was prepared, for the reasons I have outlined. We thought it far more important to focus on engagement with the independent prosecutors, the Service Prosecuting Authority and the Crown Prosecution Service. Like I said, I have met him and heard what he has to say, and we heard his evidence last week.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

No, because that would be to pre-empt the judge-led review of how we protect the Department, configure ourselves and develop the capability to deal with lawfare. Judge Blackett gave his view, but in our judgment it was better to engage the independent prosecutors, the Crown Prosecution Service and the Service Prosecuting Authority. That is what we have done—we engaged in a wide public consultation—and I believe that where we have arrived is fair and proportionate.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

The Secretary of State wrote to the Judge Advocate General on 14 May 2020 acknowledging that, because of the 100-day election commitment to introduce the Bill, it was not possible for the legal protections team to complete the usual level of stakeholder engagement that we would usually seek to undertake post-public consultation.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I am answering the hon. Gentleman’s question. However, we welcomed the Judge Advocate General’s interest in the Bill: an offer was made for the project team to engage with him at a convenient time, and I subsequently met him. I respect the hon. Gentleman’s views on who would be consulted if the Bill were drafted in a civilian context, but I am entirely comfortable that the Department spoke to the right people to gauge their views on how we should deal with the current system, which is difficult and ultimately unfair to veterans.

I respect all the views that we heard last week—of course I do—but I am allowed to disagree with them. Having worked on this for seven years, it is possible to hear other people’s views on the matter and disagree with them. The Department has taken a balanced and proportionate view, and indeed, it has incorporated a lot of views from other stakeholders throughout the process.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not give way at the moment, because I have addressed that point a number of times.

Clause 2, which the new clause would replace, sets out the principle of the presumption against prosecution, but it is to be exceptional for a prosecutor to determine that proceedings should be brought for an alleged offence that occurred in operations more than five years ago, as set out in clause 1. We have not sought to define “exceptional”, as we do not think it necessary or possible to provide an exhaustive definition. We intend, however, that the effect of clause 2 will be that when a prosecutor considers whether criminal proceedings should be brought or continued in relevant cases, there will be a presumption against prosecution, and that the threshold for rebutting that presumption will be high.

We also expect that the concept of “exceptional” will develop over time as cases are considered by prosecutors. I reinforce the point in clause 1(2): the presumption against prosecution does not impact on the prosecutor’s assessment as to whether there is sufficient evidence to justify a prosecution. It focuses instead on setting a high threshold for a prosecutor to determine that it is in the public interest to bring or to continue criminal proceedings in respect of offences committed by service personnel on operations more than five years ago.

Although the presumption will not directly impact on investigations, allegations of wrongdoing must, and will, continue to be investigated. We accept that, over time, this is likely to have an indirect impact. As prosecutors become familiar with the presumption, they should be able to advise investigators earlier in the process on whether the higher threshold of the new statutory requirement would be met in a particular case.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

Not at the moment. Although that should therefore help to reduce the likelihood of investigations being reopened without new and compelling evidence, it does not create an absolute bar to investigations or prosecutions, as a statute of limitations or an amnesty would. Rather, the presumption is rebuttal, with the prosecutor retaining the discretion to prosecute where they determine that it would be appropriate to do so. That may include cases in which there is evidence that a serious offence has been committed.

In contrast, an amnesty or a statute of limitations for service personnel would be a breach of our international legal obligations and would pose significant challenges and risks. That includes the risk that, in the absence of a domestic system for the prosecution of international criminal offences, the International Criminal Court would assert its jurisdiction and bring prosecutions against members of the UK armed forces. The presumption against prosecution, however, is consistent with our international legal obligations, as it would not affect the UK’s willingness or ability to investigate or prosecute alleged offences committed by our service personnel.

Finally, the statutory presumption and the measures in clauses 3 and 5 will apply only to proceedings that start after the Bill has become law. Although alleged criminal offences relating to operations in Iraq and Afghanistan occurred more than five years ago, meaning that the presumption could be applied in any relevant prosecutorial decisions, it is likely that any remaining investigations of those allegations will be complete before the Bill becomes law. If any new credible allegations relating to Iraq and Afghanistan should arise, however, they will obviously be subject to investigation and, where appropriate, consideration by a prosecutor. Any decision to prosecute such a case after the Bill has become law must, in accordance with the presumption, be exceptional.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

On the idea that the Department does anything other than seek the views of experts to bring through this difficult legislation, in evidence the hon. Lady has seen a set of views given by campaign groups, but those are not the only views available. This is difficult legislation that, of course, will be contested, but the idea that we have just come up with some idea after a public consultation lasting many months—[Interruption.]

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

We ask a huge amount of our service personnel. We send them to undertake high-threat and high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed.

This Government believe, therefore, that it is absolutely right and reasonable to require that in return we ensure that, in addition to the existing public interest test, a prosecutor has to give particular weight to the unique circumstances of overseas operations and the adverse impacts that those may have on a serviceperson’s capacity to make sound judgments and on their mental health at the time of an alleged offence when coming to a decision on whether to prosecute. That is not intended to excuse bad behaviour by service personnel, but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, to situations where the alleged criminal conduct occurs in a domestic civilian setting.

The prosecutor must consider the presumption against prosecution under clause 2 to determine whether a case meets the exceptional threshold. The prosecutor, as required by clause 3, must also give particular weight to matters that may, in effect, tip the balance in favour of not prosecuting. Clause 3 is therefore integral to supporting the high threshold set in clause 2 for a prosecutor to make a decision to prosecute.

There was a lot of discussion last week about the concerns over the impact on our personnel of repeated scrutiny and the mental burden placed on them by the threat of criminal prosecution occurring long after the events in question, particularly where there is no compelling new evidence to be considered. Clause 3 requires that prosecutors must also consider where there has been a previous investigation in relation to the alleged criminal conduct and no compelling new evidence has arisen. The public interest is in cases coming to a timely and final resolution.

In the responses to our public consultation, many service personnel expressed a lack of trust in prosecutors and others in the justice system. They were particularly concerned about whether prosecutors are able to understand the operational context in which the offence occurred and to adequately reflect this in determining the public interest. We fully accept that prosecutors may already take such matters into account. However, making that a statutory requirement provides greater certainty for service personnel that the unique context of overseas operations will be given particular and appropriate weight in the prosecutor’s deliberation.

By seeking to remove the benefit of the matters in clause 3 that tend towards reducing the culpability of a serviceperson and tend against prosecution, the amendments are designed to ensure that the prosecutor can also consider whether such matters increase the culpability of an individual and support a prosecution. The amendments undermine our reassurance to our service personnel that the operational context of an alleged offence will be taken into account, and in their favour, by the prosecutor. It would be a slap in the face for our armed forces personnel to suggest that the context of an overseas operation will be considered as a factor in support of their prosecution.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

The need is very clear. The fact is that the service justice system as it stands has facilitated an industrial level of claims against our people that has absolutely destroyed their lives.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

The right hon. Gentleman can sit there and say no, this did not happen and that did not happen. The rest of us live in the factual world, where these things actually did happen. They destroyed some of our finest people, which is why we are introducing this legislation. I have heard a lot from the right hon. Gentleman, and the vast majority is not correct. I respect him immensely, but it is not correct. I will therefore push on at this stage.

Amendments 3 to 5 seek to add additional factors to clause 3. In the light of amendment 1, I can assume only that the intention is somehow to bring in factors that would be seen by the prosecutor to increase a serviceperson’s culpability and make a prosecution more likely. I have already set out my arguments as to why amendment 1 should be withdrawn. Furthermore, I do not believe that amendments 3 to 5 are appropriate or needed.

Amendment 3 is designed to

“ensure that a relevant prosecutor gives particular weight to maintaining public trust in the criminal justice system and upholding the principle of accountability of the Armed Forces.”

The independent prosecutor’s responsibility is to follow the principle set out in the code for crown prosecutors. That includes the principle that they will work

“to maintain public trust and to provide an efficient criminal justice system.”

The Bill does not place service personnel above the law or make them somehow less accountable. Allegations of offences must and will continue to be investigated. Where appropriate, a prosecutor can still make a decision to prosecute. On that basis, I do not believe that amendment 3 is warranted.

Amendment 4 is designed to

“ensure that particular weight is given by a prosecutor where the alleged conduct engages the UK’s obligations”

under articles 2, 3, 4 and 5 of the European convention on human rights. The prosecutor already has to apply the principles of the ECHR, in accordance with the Human Rights Act 1998, at each stage of the case, so amendment 4’s additional requirement would be totally unnecessary.

Amendment 5 is designed to

“ensure that particular weight is given by a relevant prosecutor where the person had command responsibility for the alleged conduct.”

I can assume only that the amendment is meant to address the concerns raised last week about the chain of command being held accountable as well as individuals, but it misses the point. A decision taken by a serviceperson to use force during an overseas operation is an individual decision for which they, and not their commanding officer, may then be held personally accountable if their decision is deemed to have been in breach of criminal law. The circumstances of an incident would determine whether the involvement of a commander in the activities of their subordinates also merited a criminal prosecution. Separately, it should be noted that under the Armed Forces Act 2006, commanding officers may be investigated and prosecuted, including at court martial, for non-criminal conduct offences in relation to serious allegations of wrongdoing by personnel under their command. Non-criminal conduct offences are not covered by the Overseas Operations Bill.

On the proposed amendments to schedule 1, the Government are committed to providing reassurance to service personnel and veterans in relation to the threat of prosecution for alleged offences on overseas operations more than five years ago. The measures in part 1 of the Bill are key to delivering that reassurance. The fact that we have only excluded sexual offences in schedule 1 does not mean that we will not continue to take other offences, such as war crimes and torture, extremely seriously.

The presumption against prosecution will allow the prosecutor to continue to take decisions to prosecute these offences, and the severity of the crime and the circumstances in which it was allegedly committed will always be factors in their considerations. On a case-by-case basis, a prosecutor can determine that a case against an individual in relation to war crimes, torture or genocide is “exceptional”, and that a prosecution is therefore appropriate, subject to the approval of the Attorney General or the Advocate General in Northern Ireland. The decision to exclude only sexual offences reflects the Government’s strong stated belief that the use of sexual violence or sexual exploitation during overseas operations is never acceptable in any circumstances.

We have not excluded other offences, including torture, because in the course of their duties on overseas operations, we expect our service personnel to undertake activities that are intrinsically violent in nature. These activities can expose service personnel to the possibility that their actions may result in allegations of torture war crimes. By contrast, although allegations of sexual offences can still arise, the activities that we expect our service personnel to undertake on operations cannot possibly include those of a sexual nature.

We do not therefore believe it is appropriate to afford personnel the additional protection of the presumption in relation to allegations of sexual offences after five years. I am aware that many people have misinterpreted this decision, and have suggested that it somehow undermines the UK’s continuing commitment to upholding international humanitarian and human rights law, including the UN convention against torture. That is completely untrue. The UK does not participate in, solicit, encourage or condone the use of torture for any purpose, and we remain committed to maintaining our leading role in the promotion and protection of human rights, democracy and the rule of law.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not, as I do not have time.

These amendments seek to ensure that all offences contained within the International Criminal Court Act 2001, as it applies in England, Wales, Northern Ireland and Scotland, should be excluded offences in schedule 1. Amendment 8 is consequential on amendments 6 and 7. These amendments would amount to such a comprehensive list of offences that they would considerably undermine the effectiveness and value of the measures in part 1 of the Bill. In doing so, they would prevent the Government from delivering on their commitment to provide reassurance to our service personnel and veterans in relation to the threat of prosecution for alleged historical offences, something that they so greatly deserve.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not. Amendment 12 seeks to introduce a sunset clause where the Act will cease to have effect after five years unless the Secretary of State or Lord Chancellor lays before Parliament a report of an independent review confirming that the Act complies with the UK’s international obligations. I can assure the Committee that such a review is not required, as the measures in this Bill are consistent with our international legal obligations and do not undermine international humanitarian law as set out in the Geneva conventions.

Johnny Mercer

- Hansard -

Copy Link

- - Excerpts

I will not give way.

I therefore ask that these amendments be withdrawn.

Ordered, That the debate be now adjourned.—(Leo Docherty.)

The Minister for Defence People and Veterans (Johnny Mercer)

- Hansard -

Copy Link

- - Excerpts

Thank you, Mr Stringer, for chairing the Committee so well.

Again, there were a lot of inaccuracies in what the right hon. Member for North Durham said. The Department can never be in a position whereby, if allegations were made, it could not investigate them. That is not a lawful position, so the idea that we can legislate to stop investigations is entirely false. We have heard Bob Campbell give evidence in this Committee: his case, in the worst-case scenario, would have ended in 2009.